4.7.1.1 Higher-ranking request not admissible and/or not allowable 

If applicants reply to the Rule 71(3) communication by requesting that a grant be based on a higher-ranking request and the examining division is not convinced by the arguments and evidence filed by the applicants with their reply, the examining division resumes examination following the procedure in C‑V, 4.7.1. The examining division may also directly refuse the application providing a full reasoning under the proviso that:

– the short indication of the essential reasons given in the communication under Rule 71(3) for the non-allowability of the subject-matter of the higher-ranking requests or the non-admissibility of these requests (see C‑V, 1.1 and C‑V, 4.6.2) provides sufficient information about the objections raised by the examining division to enable the applicant to comment on them (such that the applicant is not taken by surprise, in particular where amendments or corrections have been filed together with the disapproval; see C‑V, 4.7.1) and

– the applicant's right to oral proceedings on request has been respected (Art. 116(1)) (see also H‑III, 3.3.2).

For the purposes of determining whether the reasons not to grant the higher-ranking requests given in the communication under Rule 71(3) allow the division to issue a refusal, a general indication such as "Auxiliary request 3 is not clear because an essential feature is missing" is not sufficient. Rather, a more detailed statement is needed to ensure that the applicant's right to be heard is properly respected. For example, the division may provide the applicant with an explanation such as: "Auxiliary request 3 is not inventive in view of D1 (see col. 5, lines 25-46; fig. 4) because the skilled person, wishing to avoid friction between the cable and the carpet, would make the clip recess deeper than the cable diameter".